Student Speech on the Docket?

Justices mull appeals that could alter free expression in schools.

One case is about a student whom school officials punished for raising a “Bong Hits for Jesus” banner at a school-sponsored parade. The other features two students who went to school wearing T-shirts with messages critical of gays and were disciplined as a result.

The appeals offer the U.S. Supreme Court different takes on the same red-hot question: What are the constitutional contours of students’ free-speech rights?

But whether the high court will answer the question remained secret as of press time early last week. The court hears just 1 percent of the thousands of appeals it receives each year, with the nine justices voting to take or decline cases at weekly conferences throughout their term.

The justices don’t explain publicly why they decline or accept an appeal in a given case. But court watchers study the tea leaves of the court’s docket and schedules.

For example, the “bong hits” case, Morse v. Frederick (Case No. 06-278), has been listed on the agenda for the court’s past four private conferences running—a somewhat unusual pattern—with no action on the Juneau, Alaska, school district’s appeal of a decision against it in March by the U.S. Court of Appeals for the 9th Circuit.

And on Nov. 1, the students in the T-shirt case, Harper v. Poway Unified School District (No. 06-595), appealing a 9th Circuit ruling for the Poway, Calif., district, asked the justices to expedite consideration of their appeal.

That motion was on the agenda for the court’s Nov. 21 private conference, as was the “bong hits” case, which would allow the justices, at least tentatively, to chat about both cases together. Otherwise, the Harper case was not likely to be considered for a month or more.

At least four justices must vote to accept a case, but expediting requires five votes, said Lyle Denniston, who has covered the court for over 40 years for various news organizations. Several successive listings of an appeal on the conference lists can mean merely that a justice has asked that the decision be rolled over. Or the justices may have voted to decline the case, but at least one is writing a dissent and needs more time.

Mr. Denniston pointed out that the court has granted the Poway district an extension until Dec. 28 to file its response to the students’ appeal. “That suggests to me fairly strongly that they aren’t thinking of granting a motion to expedite,” Mr. Denniston said last week.